The mediation procedure

In case you have not yet had a chance to read it, you may prefer first to read our general overview; as to what is involved in the mediation process and how you should go about setting it up in the way that best suits you.

Arranging the first session – live or online

The most usual process for mediation is for one or more meetings of 2 to 3 hours each.

There is no reason why you should not try to cover even complicated financial arrangements at a single meeting, which could be as long as a full day. However, we recommend that you start with a three hour standard session.

That will provide an opportunity for both you and the Mediator to assess not only whether you need a second session, but also whether either of you need to find additional information, obtain a professional report, consult a solicitor, or even just think things over.

It should be possible to arrange your first meeting at a time and place to suit you – to tie in with your working hours or children arrangements. However it is always essential to allow for time to run over.

Many mediators will work outside normal hours to accommodate you.

Some mediators also offer online mediation or a combination which means that the mediation proceeds online but then finishes with a face-to-face meeting. In any situation around family law, we believe a face-to-face meeting is the most efficient way to settle your arrangements.

Of course, there are many instances where it may not be convenient or possible to meet face to face and in those circumstances there is no reason why telephone, email or Internet communication should not be perfectly acceptable and effective. The attractive features of online mediation are that it solves problems like:

  • one or both of you may have some physical difficulty in attending a live mediation
  • you may be far apart from each other
  • you may want the mediation process to start by telephone or email in advance of the live meeting
  • you have had a live meeting session already. There are just a few loose ends to tie up. You want to do that immediately rather than fix a date for a new live meeting some time ahead

In online mediation, your mediator uses exactly the same skills and experience as for a live mediation.

The most comfortable venue and neutral venue is the home of the Mediator, if that is available. There are several other possibilities.
 
If you are not happy with that, then of course you should have no problem in your arranging a suitable third party venue to suit your pocket, your style, and your convenience.

Please note that the Mediator will not wish to become involved in any dispute about the time, location or management of the mediation meeting.

Together with the Mediator

If the mediation meeting has been arranged on third-party premises, the Mediator will have arrived in good time to welcome you and introduce himself. If the meeting takes place at your home, then of course he is your visitor but will nevertheless wish to control the meeting.

The session will start with an introduction by the Mediator, who will also set what you might call the rules for the day and explain aspects of the process. He will explain the importance of the "level playing field". He will be particularly concerned to require that the parties are entirely civil and do not resort to abusive or insulting language.

The agreement you have with the mediator entitles him to close the meeting and depart without compensation to you if he feels that the parties are unable to negotiate without expressing an unacceptable level of anger.

Your position statement

The next step will probably be for the Mediator to asked each of you in turn to present your “position” verbally. This is entirely informal. The mediator will not judge your public speaking skills in any way. Nonetheless, it is a good idea to practice what you want to say before the day of the meeting.

Before the meeting you will already have exchanged position statements.So if you prefer not to make an opening statement of any sort, you can rely on your position statement and explain your points as the meeting unfolds.

The Mediator is unlikely to object to your using your position statement to express your feelings about particular issues. However, whilst the Mediator is well aware of the emotional stress you have been suffering, his main goal is to enable you to achieve a fair and acceptable closure on the matters under discussion.

You should look at your position statement simply as an opportunity to tell your ex-partner and the mediator exactly what you want from the mediation process. On the one hand it is essential that you are totally transparent about facts, but on the other hand you may well decide to disclose possible concessions more gradually, as the mediation unfolds.

If one of you makes concessions in the first five minutes and the other makes none, then the entire negotiation could result in an unfair and lopsided outcome.

The Mediator will have asked you to remain silent while the other of you speaks. After that, you will each have the first opportunity to comment on what the other has said.

Continuing negotiations

As negotiations continue, the Mediator will question each of you about the viability of what you would like and will ask you to consider whatever alternatives come to mind for each problem in such a way that each of you moves closer to the requirement of the other.

The Mediator will be gentle but determined. He will not hesitate to challenge unviable or improbable suggestions. He will remind you that if you want an uncontested final order from the Court, then you’re proposals must be fair and reasonable.

Once the basic position of each party has been made and tested, negotiations continue less formally. The mediator will already have been able to identify some of the issues which have been clear from the position statements presented by each side. He may also have prepared questions and ideas. He will then manage the meeting so that the parties concentrate on one particular issue or set of issues at a time.

As negotiations progress, it is usual for the parties to gain confidence in the mediation process, becoming more flexible and open-minded as to possible solutions to the dispute. Small issues get settled quickly, leaving the parties feeling comfortable that they are making progress.

Face-to-face negotiation is just too difficult

Of course, if for any reason at all, you and your ex-partner are simply unable to talk together, then the mediation process you need is not a cosy meeting where the Mediator acts primarily as a referee and source of leadership and ideas, but to use two separate rooms, where the Mediator moves between the two of you to discuss everything privately with each in turn.

This is a lot more time consuming but it is still the best way to settle your dispute reasonably fast and at a reasonable cost.

That process of course requires that the parties recognised the possibility of this requirement at the outset and have arranged access to a second room, out of earshot of the first room.

How the session will conclude

In a family law dispute it is very rare that an issue can be won or lost. Most points at issue can be solved in different ways – or at least to different degrees. Because the only alternative to a settlement might well be litigation costing many thousands of pounds and of uncertain outcome, deadlock is usually temporary.

As a result, it is not unusual for the parties to adjourn the meeting to a later date by when both will have had the opportunity to reconsider their position and consider their options afresh.

For a meeting scheduled for a three hour slot, as the finishing time approaches, it is inevitable that the parties feel pressure to reach agreement. The Mediator too, will be aware of this and if necessary, will be ready to encourage the parties a little more strongly, to move in the direction of settlement.

Eventually, the Mediator provides a short assessment of progress and possibly outlines ways in which any final outstanding matters can be resolved.

The end role of the Mediator

The most important element of the outcome of your final mediation meeting is for the Mediator  to have drawn up a document which will assist you or your solicitors to draw your agreed “consent order” and submitted to court.
please note that it is not part of the Mediator’s task to have specific regard to what is needed in the consent order. The mediator will help you to achieve agreement to end your dispute and to sign up to a document which records that agreement. That will usually be a binding agreement which contains terms of what you have agreed with the mediator’s help. That document will serve two purposes.

In the first place, you will have a signed and dated record of all that you have agreed. There is no reason why you should not later agreed to do things differently, for the document is not binding. However, you will find it useful to have a starting point for as many points of interface between your lives, as possible.

More about your consent order

For your divorce your ultimate target is a decree absolute from the Court. For all your other affairs, your ultimate target is a financial order from the Court.

If you do not want to pay solicitors to argue the finer points before the Court, then it is important that the mediation process enables you to reach agreement in relation to the broad subjects you are likely to want to see included in the draft financial order.

Most couples prefer to deal with their settlement on a once and for all basis. That is commonly known as the "clean break". That means neither of you can make a fresh application to the Court in the future.

If it is clear that one of you depends on the other financially and will do so for a long period of time, than the Court order will provide for either party to be able to return later to change the arrangement if the new circumstances justify a change.

It is therefore important that the draft order which is placed before the Court is drawn in terms you have agreed and which the Court has jurisdiction to make and which the judge regards are appropriate.

Plan your strategy for the mediation meeting

Unless you are very rich, you should view mediation not merely as the best option but as the only option. Mediation is the best process to obtain a win win situation. It is not about compromising. It is about finding the best solutions to the problems that have arisen.

That means you should try to come to your mediation session looking forward and not back. Mediation is your opportunity to negotiate the best deal for you. You are under no obligation to support or empathise with your ex-partner. However, it is unlikely that you will settle the points of dispute if you see mediation simply as an opportunity to "win".

Conversely, you need to be aware that your ex-partner might be firmly set on winning, either out of a sense of grievance or because he/she wants the money or house or children, as the case may be.

Before your first mediation meeting, it’s a good idea to talk with your ex-partner to agree as many points as possible. Even if you can’t make final agreement, try to understand each other’s range of possibilities.

Make lists of what you want from the mediation, what your ex-partner might want, and what additional options you might offer to him/her. Calculate the absolute minimum outcome that you could live with. Identify your red lines and what you think his/hers will be.

At the mediation meeting, stay calm, even if your ex-partner starts to get excited. Leave it to the Mediator to sort out any emotional problem.

Absolutely avoid reopening old wounds. Look to the future – not to the past.

If you have children, consider what they really need from both of you and work out in your own mind how best that can be provided.

Allow for the possibility that you will need additional mediation sessions. Sometimes one of you will want to think things over or talk to a friend or your solicitor before making final decisions.

Take a friend in too?

The time of divorce and separation is one of those times in life when even the strongest of us sometimes feel alone in the World. Even bringing a mediator into your personal life can seem to be a big step.

You may think a good way to restore your confidence and relaxation is to bring a friend or relative with you to the mediation meeting. Sometimes, it may be essential that you have a friend, or your solicitor, with you for some or all of the mediation meeting. An example of this circumstance would be if your understanding of English law and language may not be adequate without help.

There is no reason in theory why you should not do so. However, there are two reasons why it is not a good idea.

The confidentiality issue

First, when you sign the Mediator’s agreement, you will commit to a high level of confidentiality. You are responsible for your friend or relative keeping to that, so it is important to select carefully.

Your ex-partner could take legal action against you if the person you bring is unable to avoid disclosing even her attendance at your mediation session, to her friends and relatives, for example via social media.

Second, the presence of the third party is certain to discourage your ex-partner from putting his/her cards on the table as openly and honestly as the mediation process requires.

To avoid these problems, we suggest that the mediation meeting should take place at a third party venue rather than at your own home. Your friend can then be present at each short meeting between you and the mediator, but of course will then not be present when the Mediator meets your ex-partner.

Alternatively, the meeting can take place in the usual way where you and your ex-partner are together with the mediator for all of the time. You could then excuse yourself from time to time in order to discuss your position with your friend.

It is not a good idea to bring more than one person with you.

Be prepared to engage with the Mediator personally

Of course, a good place to start is by choosing the right mediator.

The Mediator will always want to be certain that he is talking to you and not to someone you bring with you. It is unlikely that he will be willing to engage in conversation or discussion with your friend. He will want to be absolutely certain that any decision made is your decision and not that of any other person.

A common mistake is to assume that just because a mediation is comparatively informal, you can "play it by ear". Of course you can, but that is a very bad idea. the Mediator is not your adviser and cannot support you in working out your arguments.

You will achieve the best result by coming to the meeting with clear ideas, preferably having practised setting them out, maybe in front of that same friend. Remember always, that mediation is a managed negotiation. We like to call it “Negotiation with a referee”. That is a brutal way of putting it, but it makes the point.

What about a solicitor?

Of course you can bring a solicitor to your mediation meeting. We suggest you obtain a an hourly rate for his fee in advance.

Your mediator is unlikely to accept the proposition that your solicitor can negotiate on your behalf. On the contrary, he is likely to take a strong line in instructing your solicitor as to his role.

A solicitor’s first duty in every professional situation, is to his clients best interest. That means, given a free rein, many solicitors will start to “argue a case”, and in doing so will be looking for a win: lose outcome. That is anathema to the mediation process.

However, if the legal elements of your claim are paramount, then certainly, your solicitor should be able to advise you on what action you should take.

If you wish to bring a solicitor, it is also essential to make arrangements for the mediation meeting to be located somewhere where an additional room is available for your private discussions.

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